Thursday, June 20

Towards a solution to a festering problem?


A GOVERNMENT exists to solve problems. For one particular problem that refuses to go away, any government worth its salt must be resolute to make a move towards a permanent solution, however unpopular that move may be.

One way of solving the problem of the land ownership of the Natives of Sarawak is for the government to initiate a survey of all Native-owned lands and to issue indefeasible title under the Torrens System to individual registered proprietors.

This policy is nothing new in Sarawak. In the late 1950s and early 1970s, surveys were carried out of land claimed by the Natives as theirs according to their customs. As a result, documents of title or certificates of title, mostly under Section 18 and many also under the so-called Mixed Zoned Title, have been issued to hundreds of Native landowners.

Most Native owned lands around Simpang Tiga/Tabuan Dayak in Kuching and in the Samarahan were registered and issued with individual title.

Away in the Second Division, I remember dropping in at a Lachau office of the chief settlement officer, Mr Ancheh, to see how his team of surveyors from the Department of Land and Survey did their work at the ground level.

The settlement or more exactly the adjudication of rights as opposed to settlement of people was carried out under Part V of the Land Code 1958 with great success.

Unfortunately, this policy did not last long because of several factors. In 1970, I was told by a former director of the department that it would take 200 years to demarcate and survey all land subject to NCR land, not to mention the huge expenditure incurred which the government at the time could ill afford. Another reason for not continuing with the exercise was political in nature – the impression that too much land has been given to the Natives; this would not be good for the country, some people claim.

The settlement process is long and tedious before documents of title could be issued to the registered proprietors because the rival claims of ownership over vast tracts of land must be thoroughly investigated. Money and related requirement such as staffing were a real constraint at the time.

But that was our financial situation in the 1960s and 1970s; now I hear that we have a lot of money tucked away somewhere. Why can’t we pinch a bit from the RM31 billion for the Settlement Operation under Part V of the Land Code so that the rights owned by the Natives have the force of law with the issuance to individuals of an indefeasible title to land? Hey, there’s more money from our oil and gas too.

I hope the authorities will consider revisiting the title surveys as a means to settle the security of tenure in terms of land traditionally owned by the Natives of Sarawak once and for all, thus avoiding unnecessary further disputes with the genuine investors in land development or those in the genuine business of timber extraction.

In his book ‘Native Law in Sabah and Sarawak’ (Singapore Malayan Law Journal Pte Ltd 1980), Dr MB Hooker calls this Torrens Title “full registerable and saleable title …”

The late Peter Mooney, former Attorney General of Sarawak, in his book ‘A Servant of Sarawak’ (Monsoon Books, Singapore 2011) – said about the Crown’s treatment of customary landowners, “Although their lands had never been surveyed or demarcated in any way they all knew what land belonged to them – in the sense that it was theirs to cultivate as it had been their forefathers’. It was the very foundation of their lives … I was concerned that they had no legal rights to the land, only customary rights and these were not embodied in or recognised by the proposed new comprehensive Land Code 1958 (the suspect) as they were not in the existing law … In a society which had been politically and economically static for many generations, land titles in the interior had not been an issue. But times were changing rapidly.

“Timber was valuable and the interior was heavily forested with primary forest over 30 million years old containing over a hundred feet high. Sawmills were being developed and timber companies were being granted concessions. These trees were particularly valuable. It was not difficult to foresee that concessions could be granted, which would encroach on the customary rights of people who lived and farmed areas over the areas conceded; people could lose their homes as well the source of their livelihood … The government’s duty was to serve the people and protect their rights. This was one of the principles of the Brookes and was surely our duty too.”

Mooney was expressing his public frustration after he had left the service. Even though he was in power in Sarawak, third most important colonial officer behind the Governor and the Chief Secretary, it was most difficult for him to push his viewpoint – legislating the Native interests in land – when “many interests were involved and whatever solution was arrived at by the government would be unpopular and opposed by some of these interested parties.”

Sound familiar?

To be continued.

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